United States v. Lewis William Kelly ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2037
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Lewis William Kelly, *
*
Appellant. *
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Submitted: November 17, 1998
Filed: February 1, 1999
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Before MCMILLIAN, FLOYD R. GIBSON and HANSEN, Circuit Judges.
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FLOYD R. GIBSON, Circuit Judge.
Lewis William Kelly pleaded guilty to one count of possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1994), and one
count of using and carrying a firearm during and in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (1994). Kelly appeals his sentence and
contends that he is entitled to have his guilty plea set aside because the transcript of the
hearing in which he pleaded guilty is unavailable to his appellate counsel. We affirm
the district court's1 judgment and order.
I. BACKGROUND
On October 29, 1997, Kelly, pursuant to a written Plea Agreement, pleaded
guilty to counts one and four of a five-count Superseding Indictment.2 On that same
day, a hearing was held in the district court. During the hearing, the district court
accepted Kelly's guilty pleas and ordered a Presentence Investigation Report (PIR).
See Criminal Minutes - Change of Plea, Appellant's Separate App. at 44. The hearing
was attended by Judge Wright, Kelly, Kelly's counsel, counsel for the government, a
parole officer, and a court reporter. See Criminal Docket Sheet, Appellant's Separate
App. at 6, and Criminal Minutes - Change of Plea, Appellant's Separate App. at 44.
On February 20, 1998, the district court sentenced Kelly to a total of 180 months3
incarceration with five years supervised release and imposed a $3000.00 fine. See Tr.
of Sentencing Proceeding at 8.
1
The HONORABLE SCOTT O. WRIGHT, United States District Judge for the
Western District of Missouri.
2
The grand jury returned the Superseding Indictment on September 4, 1997. The
Indictment charged Kelly with one count of possession with intent to distribute
methamphetamine, two counts of distribution of methamphetamine, one count of using
a firearm in relation to a drug trafficking offense, and one count of possession of
marijuana with intent to distribute.
3
Kelly was sentenced to 120 months on the methamphetamine possession charge
and 60 months on the firearm charge, sentences to run consecutively.
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On December 8, 1997, a fire in the United States District Court Clerk's Office
in Jefferson City, Missouri, destroyed the tape recording and court notes of Kelly's
October 29 plea hearing. As the tape recording had not yet been transcribed, the fire
destroyed the only verbatim record of the hearing.
Kelly appealed his sentence and retained new appellate counsel in April of 1998.
When Kelly's counsel requested a transcript of the hearing, the Clerk's Office informed
her that the transcript she sought was unavailable due to the fire. Kelly argues that the
lack of the transcript renders his counsel unable to determine what, if any, errors were
made at the district court level. Therefore, Kelly contends that the appropriate relief
is to allow him to withdraw his guilty plea. Kelly maintains that he did not understand
the range of punishments and, thus, did not knowingly and voluntarily plead guilty.
Because we find that Kelly was not prejudiced by the inadequate record, we affirm the
district court.
II. DISCUSSION
Initially, we note that the Court Reporters Act has been undeniably violated in
this case. See 28 U.S.C. § 753(b) (1994). Section 753(b) of the Act requires that "all
proceedings in criminal cases had in open court . . . shall be recorded verbatim . . .
[and] preserve[d] . . . in the public records of the court for not less than ten years."
However, Congress did not provide a remedy for violations of the Act. Rule 10(c) of
the Federal Rules of Appellate Procedure addresses the issue of unavailable transcripts.
Rule 10(c) provides that an "appellant may prepare a statement of the evidence or
proceedings from the best available means" when a transcript is unavailable or non-
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existent. In his attempt to prepare a statement of the evidence, Kelly claims that no one
present at the hearing can recall verbatim what actually transpired.4 Kelly argues that
the violation of the Court Reporters Act and the participants' inability to reconstruct
the hearing verbatim require reversal of the district court's judgment and sentence and
remand to the district court in which Kelly may alter his previous plea. We disagree.
The Eighth Circuit has never specifically addressed the consequences of
violating the Court Reporters Act. However, a majority of courts which have faced
similar factual circumstances have held that mere non-compliance with the Act does
not constitute automatic grounds for reversal. See United States v. Brand, 80 F.3d
560, 563 (1st Cir. 1996) ("nothing prescribes automatic reversal of a defendant's
convictions for non-compliance [with §753(b)]"); United States v. Winstead, 74 F.3d
1313, 1321 (D.C. Cir. 1996) (burdens and benefits of reversing convictions due to
incomplete transcript weighed on a case-by-case basis); United States v. Wilson, 16
F.3d 1027, 1031 (9th Cir. 1994) (noting that defendant must demonstrate "specific
prejudice" from inadequate transcript to warrant reversal). But see United States v.
Selva, 559 F.2d 1303, 1306 (5th Cir. 1977) ("When . . . a criminal defendant is
represented on appeal by counsel other than the attorney at trial, the absence of a
substantial and significant portion of the record, even absent any showing of specific
prejudice or error, is sufficient to mandate reversal.")(internal footnote omitted). With
the exception of the Fifth Circuit, every Court of Appeals that has addressed the issue
of incomplete or unavailable transcripts has required that the appellant show that the
Act's violation specifically prejudiced their ability to perfect an appeal. See, e.g.,
United States v.
4
Pertinent portions of the record on appeal consist of the written Plea
Agreement, signed by Kelly, and the transcript of the Sentencing Proceeding.
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Sierra, 981 F.2d 123, 125 (4th Cir. 1992); United States v. Gallo, 763 F.2d 1504,
1530 (6th Cir. 1985). We find persuasive the reasoning adopted by the majority of the
Courts of Appeals that some showing of prejudice is required before non-compliance
with the Court Reporters Act necessitates reversal of a defendant's conviction.5
Kelly has failed to allege, let alone demonstrate, that his ability to perfect an
appeal was prejudiced by the lack of the guilty plea transcript. He has not alleged that
the court erred in its acceptance of his guilty plea. In fact, every indication made
available to this Court by Kelly and the government support the presumption that the
guilty plea was advanced by Kelly and accepted by the court in a routine manner.6
Kelly also claims that, were a transcript of the guilty plea hearing available, he
would be able to present evidence on appeal that his plea was not knowing or
voluntary. We find this contention to be without merit. The items available for review
upon appeal indicate that Kelly made a knowing and voluntary decision to plead guilty
to two counts of a five-count indictment in exchange for the government's agreement
5
Kelly cites in his brief this Court's per curiam decision in United States v.
Knox, 456 F.2d 1024 (8th Cir. 1972), as support for the proposition that lack of a
transcript requires reversal. In Knox, the entire transcript of district court proceedings
were unavailable, and the Court noted, with no further discussion, that the "peculiar
facts of this case . . . [made] [a]n actual transcript . . . essential to proper review." Id.
at 1025. In that case, Knox asserted on appeal that his consolidated trial on two
unrelated offenses had resulted in prejudicial confusion of the jury. We see no
inconsistency between the holding in Knox and our decision today, especially in light
of our restriction of Knox to its "peculiar facts." Id.6
Neither Judge Wright, Kelly's trial counsel, the United States attorney, nor the
parole officer present in the courtroom remembered any untoward occurrences during
the guilty plea hearing.
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to drop the remaining three counts. See Plea Agreement, Appellant's Separate App.
at 13. The written Plea Agreement, signed by Kelly, also states that:
The Defendant acknowledges that he has read the entire Plea Agreement,
discussed it with counsel, and understands each and every provision and
agreement. He further acknowledges that this agreement was freely and
voluntarily entered into, without coercion, and with the benefit of
counsel, with whose performance and advice he is pleased.
Id. at 19. Kelly, in his objections to the PIR, asserted that he was entitled to a
downward adjustment in his sentence for acceptance of responsibility.7 Kelly's attempt
to reduce his sentence through his own acceptance of responsibility is inconsistent with
his attempt to claim now that he did not knowingly or voluntarily plead guilty.
We reject Kelly's contention that he is entitled to retract his guilty plea simply
because a fire destroyed the only verbatim record of the hearing. Despite the lack of
this transcript, Kelly has failed to demonstrate any specific prejudice to his ability to
perfect an appeal which would justify allowing him to alter his plea.
III. CONCLUSION
For the reasons set forth in this opinion, we affirm the judgment of the district
court.
7
The district court granted Kelly a one-month downward adjustment for
acceptance of responsibility. See Tr. of Sentencing Proceeding (Feb. 20, 1998) at 6.
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A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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